| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LAVITA -v- SHIRE OF GINGIN [2005] WADC 93 CORAM : COMMISSIONER KEEN HEARD : 10 MAY 2005 DELIVERED : 20 MAY 2005 FILE NO/S : CIVO 339 of 2004 BETWEEN : MARCEL GRAHAM LAVITA Plaintiff
AND
SHIRE OF GINGIN
Defendant
Catchwords: Negligence - Damages - Application for leave to bring action under s 47 Limitation Act 1935 - Delay not occasioned by mistake or other reasonable cause - Exercise of discretion
Legislation: Limitation Act 1935 (WA), s 47A
Occupiers' Liability Act 1985
Result: Application dismissed
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Representation:
Counsel:
Plaintiff : Ms R A Van Heerwaarden
Defendant : Mr J Eller
Solicitors:
Plaintiff : Bradford & Co
Defendant : John Eller
Case(s) referred to in judgment(s):
Baker v Shire of Albany (1994) 14 WAR 46
Donoghue v Stevenson (1932) AC 562
Matheson v Commissioner of Main Roads and Anor [2001] WASCA 402
Pascoe v The Nominal Defendant (Queensland) (No 2) (1964) Qd R 373
Quinlivan v Portland Harbour Trust [1963] VR 25
Van der Sluice v Display Craft Limited [2002] NSWCA 204 at 74
Victorian Railways Commissioners v Casaccio [1961] VR 157
Case(s) also cited:
Bingham v England (1996) 17 WAR 226
Black v City of South Melbourne [1963] VR 34
Commissioner for Railways (Victoria) v Casaccio [1961] VR 157
Murray v Baxter (1914) 18 CLR 622
Palamore Pty Ltd v Shire of Broome [1998] WASCA 32
Richardson v Kwentor Pty Ltd [2001] WADC 184
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 91 LGERA 138
Steven v Motor Vehicle Insurance Trust [1978] WAR 232
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1 COMMISSIONER KEEN: This is an application by the plaintiff by way of originating summons for leave pursuant to s 47A(3) of the Limitation Act 1935 ("the Act")to bring an action against the defendant arising from personal injuries and disabilities suffered by him in an accident on 9 January 2000.
The circumstances of the accident and cause of action 2 By his affidavit sworn 8 December 2004, the plaintiff alleges that on 9 January 2000 he slipped on a wet floor at the male toilet building situated at the beach at Moore River. That toilet block was alleged to be owned and controlled by the defendant. 3 As a result of the accident the plaintiff sustained a right subdural haematoma. 4 The plaintiff claims that he has an action against the defendant arising from breach of the Occupiers Liability Act 1985 and by way of a breach of a common law of duty of care.
The relevant legislation 5 Section 47A of the Limitation Act 1935 provides: "(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsections (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
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(2) ... (3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant. (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose. (c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made."
The requirement for leave 6 The requirement that the plaintiff needs to satisfy in order to obtain leave under s47A(3) can be simply stated as follows: (a) That the delay in bringing in the action was occasioned by a mistake; (b) Alternatively, the delay in bringing the action was occasioned by any other reasonable cause; (c) Alternatively, the prospective defendant is not materially prejudiced in its defence or otherwise by the delay. 7 If one of those conditions is satisfied then the Court has a discretion to grant leave if it is just to do so: Matheson v Commissioner of Main Roads and Anor [2001] WASCA 402, per Murray J at 18.
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The plaintiff's case
8 The plaintiff's case is that the delay in bringing the action was occasioned by reasonable cause. The plaintiff does not advance an argument that the delay has been occasioned by mistake. 9 The plaintiff, in his affidavit in support of the application, said that after his accident on 11 January 2000 he was examined by his general practitioner on 12 January 2000 and underwent a CT scan of his skull which was repeated on 23 February 2000. He was diagnosed as having suffered a right subdural haematoma and was admitted to Sir Charles Gairdner Hospital where on 24 February 2000 he underwent surgery by way of drainage of the haematoma. He was discharged on 28 February 2000. Thereafter he underwent a further CT scan and follow-up examinations and treatment from his general practitioner. 10 The plaintiff instructed his solicitors on 18 December 2000. He said that he waited until that time because he was receiving treatment for his injuries and wanted to ensure that his injuries had stabilised before instructing solicitors. He further said that he was not aware of the provisions of s 47A of the Act and he was not sure whether he would be able to return to work given his injuries. 11 The plaintiff further deposed that between 18 December 2000 and November 2004 his solicitors had sought information from the treating doctors as to the injuries, obtained copies of treatment notes, interviewed witnesses as to the circumstances in which the accident occurred, taken photographs of the toilet block, identified the owner of the toilet block as the defendant and on 19 September 2002 gave notice of the claim to the defendant. He went on to say that he has provided a proof of evidence to his solicitors and that he understood that other people who were with him on the day of the accident had also provided proofs of evidence to the solicitors. He went on to say that his injuries had stabilised sufficiently to be able to proceed with the claim. 12 The letter of 19 September 2000 referred to in the plaintiff's affidavit was annexed thereto and was a letter from his solicitors to the Shire of Gingin giving notice of the claim and relevantly stating: "On 9 January 2000 at approximately lunchtime, our client was in the male bathroom of the toilet and shower block at Moore River, near the beach. After using the urinal our client stepped down then slipped falling and hitting his head. As a result of the fall our client suffered a laceration to the rear of his skull.
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Our client will alleged that his fall occurred as a result of the slippery surface in the toilet section. Our client has sustained injuries as a result. We are instructed that the Shire of Gingin is responsible for the management and control of the toilet and shower block situated at Moore River. Our client will allege that his accident occurred as a result of the state of the toilet block and a failure to warn him of the dangers posed by using the toilet block. Specifically the area was very slippery and posed a foreseeable risk of injury." 13 The letter went on to seek the consent from the Shire to commencement of the action, which consent was refused. 14 The meaning of "other reasonable cause" can be ascertained from the decision of Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28 (followed in Mathesons's case at 49) where reasonable cause is "... a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man." 15 The delay in this matter can be split into three periods: 16 The plaintiff has explained the delay prior to 18 December 2000. To the extent that the plaintiff says that he was not aware of the provisions of s 47A, this would appear to be mere ignorance of the law and not a mistake. Whilst the plaintiff's explanation is limited it is a cause consistent with a reasonable standard of conduct and the kind of thing which might be expected to delay the giving of notice by a reasonable man in the plaintiff's position. 17 The delay between 18 December 2000 and November 2004 which comprises the second two periods has been explained by the plaintiff as set out above. It is pertinent to note that in his affidavit the plaintiff
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deposes to one cause of the delay being the interviewing of witnesses as to the circumstances in which the accident occurred. However, it was conceded by the plaintiff in written submissions in support of the application and on the hearing of the application that there were no witnesses to the circumstances of the accident. There were only witnesses being persons who were with the plaintiff on the day of the accident both before and after the accident but who did not see the accident. 18 The reasons given by the plaintiff for this delay are not, in my opinion, consistent with the description of "reasonable cause" in Quinlivan's case. I was not presented with any evidence or argument to show why all or any of those items referred to by the plaintiff, either individually or collectively, would have caused a reasonable person not to have given notice to the defendant prior to 19 September 2002. There is simply no explanation, or reasonable explanation, for that delay. That there should be a proper explanation consisted with reasonable standards of conduct is beyond doubt: Matheson at 51. 19 As to the final period of delay, that is to say from 19 September 2002 to 22 October 2004, there is simply no explanation or reasonable explanation. The evidence given by the plaintiff in his affidavit sets out what was being done on the plaintiff's behalf and one might speculate as to what part of that work was done before 19 September 2002 and what part after. However, one should not be required to speculate and the affidavit is devoid of detail as to this. Further, when considering the question of prejudice to the defendant, it is said by the plaintiff that since 19 September 2000 the defendant has been aware of the intended action and has had opportunity to investigate the matter and collate all relevant documents and proof witnesses. The same might be said of the plaintiff but there is no explanation of what was being done. 20 In the circumstances I am of the view that a reasonable person would not regard the circumstances as set out in the plaintiff's affidavit as being a reasonable cause for delay in bringing the action.
Prejudice 21 The next alternative ground is that there is no material prejudice to the prospective defendant in its defence or otherwise by the failure or delay on the part of the plaintiff.
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22 In Matheson's case at 52 Murray J said:
"In Baker, (Baker v Shire of Albany (1994) 14 WAR 46) this Court confirmed the view expressed in Stevens (Stevens v MVIT [1978] WAR 232) that the way in which the section was formulated meant that the ultimate burden to establish the absence of material prejudice lay upon the prospective plaintiff. However, it was accepted that the issue would not need to be specifically addressed unless the evidence raised the question that material prejudice might exist. That might be put in terms that the prospective defendant is regarded as carrying an initial evidentiary onus to raise the question, but once the evidence reached that stage, the ultimate onus to displace the inference of material prejudice would rest upon the prospective plaintiff: see per Kennedy J at 56." 23 In this matter there was no affidavit from the defendant as to prejudice. The plaintiff argued that there was no evidence of any change to the toilet block in the ensuing years and that the defendant had now been on notice of the claim for some 2½ years and there had been ample time for investigation. It was argued that there was no evidence from the defendant that it cannot investigate the matter. For the defendant it was argued that after putting the defendant on notice by the letter of 19 September 2002 the matter was not resurrected until recently and there was therefore nothing to alert the Shire to make enquiries. The defendant argued in written submissions and on the hearing that the delay of 21 months in giving any notice of the alleged accident, particularly in the light of the nature of the allegations against the defendant in the proposed action, materially prejudiced the defendant in its defence of the action and in particular the inability to carry out any investigation of the accident site and the inability to obtain expert evidence. The defendant also cited Mathesonat 25 wherein Murray J when speaking to the provisions of s 47A(3)(a) which allows the plaintiff "to bring an action at any time before the expiration of six years from the date on which the cause of action accrued" said: "The provision, in my view, reflects a clear statutory policy that after that period, the justice of every case will be best served by not permitting a dilatory plaintiff to ventilate a cause of action against a prospective defendant, no matter what merits his case may be seen objectively to possess. It is at that point that potential injustice to the plaintiff is by the statute outweighed by the interests of the prospective defendant not to be further
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exposed to the expense and inconvenience of defending an action and not to be exposed to the liability which might arise." 24 Whilst counsel for the defendant relied upon that statement of principle it seems to me that it is not relevant to the present case where the six year period has not expired and this is an application to bring proceedings within that period. In my opinion s 47A(3)(b) is relevant to the extent that the Court is required to consider whether or not the defendant is materially prejudiced in his defence if leave is given to commence the action before the expiration of six years. 25 In this case there is no evidence from the defendant in the form of an affidavit demonstrating the existence of prejudice on its part. In Baker v Shire of Albany (1994) 14 WAR 46 it was noted that the prospective defendant carried an initial evidentiary onus as to prejudice with the ultimate onus resting on the prospective plaintiff. In that case the plaintiff had been injured when attending a cattle sale and slipped when walking along a viewing rail. Evidence was adduced on behalf of the respondent which was "somewhat thin, leaving much to inference, ...". The evidence was also described as "rather light evidence on this question." Notwithstanding that the evidence in that case was thin and light and left much to inference there was at least some evidence going to the question of prejudice which the appellant then failed to rebut. 26 Whilst s 47A(3)(b) does not specifically require that there be evidence as to prejudice, given that the Court is required to exercise a discretion, there must be something upon which the Court can operate in the exercise of that discretion. In Matheson's case Murray J at 52 describes it as "the issue (the ultimate burden on the plaintiff) would not need to be specifically addressed unless the evidence raised the question that material prejudice might exist." Accordingly it seems to me that the initial evidentiary onus resting upon the defendant to demonstrate prejudice has not been discharged. This is so no matter how sympathetic one might be to the arguments put forward on behalf of the defendant, the Court cannot make inferences without there being some matters upon which the inference can be drawn: cf Baker v Shire of Albany (supra). 27 In my view no material prejudice to the defendant has been demonstrated.
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Discretion
28 Even if one or more of the conditions for granting leave set out in s 47A(3)(b) are satisfied the Court is still required to exercise a discretion whether to grant leave to bring the action. 29 The only notice given by the plaintiff was by his solicitor's letter of 19 September 2002, the content of which I have set out above. However, it is pertinent to note that that letter merely describes the plaintiff as slipping and falling hitting his head and that the allegation will be that the fall occurred as a result of the slippery surface in the toilet section and a failure to warn of the dangers posed by using the toilet block. It was said that specifically the area was very slippery and posed a foreseeable risk of injury. 30 In Victorian Railways Commissioners v Casaccio VR 157 the plaintiff applied under similar provisions in the Limitation Act(1958) (Vic) on the issue of whether or not the respondent had given sufficient notice, (notice merely giving a general gist of the case, having been given) the Court said, at 160: "We think that there probably was such evidence, but even if there was not, it is not essential for an applicant under s. 34(4) to show a prima facie case of liability. In other words, the fact that he does not do so does not mean that it must be held to be unjust to give the leave sought. It may be a material consideration that such proof appears, and is sufficient ground for holding that it is just to grant leave, and that was all that Sholl J., said in Akermanis'sCase. ... On the other hand, it may be quite enough, it appears, that the claim is not mala fide, nor merely speculative or absurd. All that the applicant seeks is leave to institute proceedings, with all the risks which attend the suit of any plaintiff. It is no doubt true that the reference in the sub-section to the 'justice' of an order gives the court a power which it has not got in the case of an ordinary writ, to refuse leave if the action is, e.g., a 'try-on' (to use a popular phrase). But the view that every applicant must prove a prima facie case of liability is misconceived and would impose an altogether unreasonable burden on applicants. It might in some cases involve a very lengthy and difficult task." 31 A similar approach was taken by the Full Court of the Supreme Court of Queensland in Pascoe v The Nominal Defendant (Queensland)(No 2) (1964) Qd R 373.
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32 In granting or refusing leave under s 47A(3)(b) of the Act the Court is required to exercise a discretion. In other words how may the Court do justice between the parties. Whilst it appears from the authorities noted above that the plaintiff need not prove a prima facie case there must be some material upon which the Court can exercise its discretion. In Matheson, when considering the exercise of discretion, Murray J said at 56 that, apart from the question of material prejudice to the defendant:
"In addition, such matters as the strength of the cause of action and the question whether the prospective plaintiff would be materially prejudiced by an incapacity to pursue it will continue to be relevant." 33 His Honour went on to say: "To my mind, nothing appears from the evidence to show that the action as it would be brought against these respondents would have a strength or a likelihood of success of any particular note or substantially better than the prospects of success in the action against the driver of the motor vehicle." 34 The only allegation in the present case is that the plaintiff slipped because the floor was very slippery and posed a foreseeable risk of injury. The Court did not have the benefit of how that might be particularised by way of negligence, nor any evidence as to what, if any, investigation had been carried out whether of an expert nature or otherwise to demonstrate or support the bald allegation that was made. 35 Section 47A(1) requires the prospective plaintiff to give notice in writing giving reasonable information of the circumstances upon which the proposed action will be based. It seems to me that in an application under s 47A(3), at the very least the Court should be provided with a similar amount of information to show what the case is. Whilst it is not essential for the applicant to show a prima facie case of liability and it is enough if it appears that the claim is not mala fide, speculative or absurd or a "try-on", the allegations put before the Court are thin and are not illuminated by any particulars whatsoever. 36 Whilst I have held that there is no evidence on the part of the defendant that the defendant has been materially prejudiced the allegations made against the defendant are, as I have noted, thin and are not illuminated by any particulars. It was conceded by counsel for the plaintiff that there was no evidence as to whether there had been any
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change to the surface of the floor of the toilet block in the intervening period. 37 The plaintiff's proposed action is one that is expressed in such vague items that it is difficult to ascertain how the cause of action arises. The claim is said to arise under the Occupiers Liability Act 1985 and at common law. Under s 5 of the Occupiers Liability Act 1985 it is provided: "(1) Subject to sub-sections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger." 38 One of the matters to be considered under sub-section (4) is the nature of the premises. 39 Nothing was before the Court to show what the state of the premises were other than it is alleged that the floor was slippery. There was no allegation of what has been done or omitted to be done by the defendant under its obligations under that Act. 40 Further, insofar as the common law is concerned, again the negligence has not been particularised and, short of accepting as a bald statement of principle that a person who creates a danger owes a duty of care to those who might be exposed to the danger (Donoghue v Stevenson (1932) AC 562), I was left to speculate as to what the negligence might be. Having regard to the nature of the premises and the circumstances of the injury as notified, the detail of the allegations takes on greater importance when one has regard to the approach taken by Heydon JA (as he then was) in Van der Sluice v Display Craft Limited [2002] NSWCA 204 at 74 where his Honour gave numerous examples of events which he described as "matters which no adult need be told about and which any adult can be trusted to guard against dangers of because it is all part of the equipment of all normal adult human beings."
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41 Dean DCJ in Richardson v Kwentor Pty Ltd [2001] WADC 184. noted:
"It is necessary to examine and consider the individual circumstances of each case in order to determine what the duty in the particular circumstances is or might be, taking into account the risk from which damages allegedly flowed to the plaintiff. Depending on the answer to that question it is then necessary to decide what precisely a defendant should have done and did not do in relation to the particular duty; Phillis v Anor v Daly (1989) A Tort Rep 80-324 at 68, 467" 42 From the way in which the matter is expressed in the notice of 19 September 2002, nothing appears from the evidence to show that the action if brought against the respondent would have a strength or a likelihood of success on any particular note: cf Matheson at 57 or to determine, not that there is a prima facie case, but even whether the action is mala fide, speculative, absurd or a "try on". 43 The absence of any proper explanation as to the delay in this matter, particularly going to the investigation of the circumstances of the accident add weight to that finding. 44 In my view the Court should not exercise its discretion to grant leave to the plaintiff to bring the proposed action against the defendant.
Conclusion 45 The application for leave to bring the proposed action against the defendant is dismissed.
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